Can Employers Require COVID-19 Vaccines?

With vaccine approval nearing, businesses ask if they can require their workers to get the shot.

December 04, 2020

WASHINGTON—A COVID-19 vaccine will soon hit the market, and while the first doses will be reserved for health-care workers, employers, especially those of essential workers, are already asking if they can require staff to be inoculated, the Washington Post reports.

“Until maybe about a month ago, we hadn’t had many clients asking about it,” said Brett Coburn, a partner with the law firm Alston & Bird. “We’re starting to see a lot more momentum.”

Questions have been swirling about whether employers can require the vaccine, if they should use incentives to generate compliance, and how they can respond to employees who refuse the shot. “If someone’s not willing to wear a mask, do you think they’re going to put a shot in their body?” Coburn asked.

Guidance on this question has yet to be given from the U.S. Equal Employment Opportunity Commission (EEOC) and the Centers for Disease Control and prevention (CDC). The EEOC “is actively evaluating how a potential vaccine would interact with employers’ obligations under the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, and the other laws the Commission enforces,” said Christine Nazer, an EEOC spokeswoman.

What makes the coronavirus different from a flu shot or other vaccines is that COVID-19 vaccines will likely be available under an “emergency use authorization,” instead of the usual full Food and Drug Administration (FDA) licensure. That means there’s been no precedent on whether an employer can mandate such a vaccine as a condition of employment.

Once the federal government formally approves the coronavirus vaccine, employment attorneys say it will probably be treated similar to a flu shot, which can be required, although that rarely happens outside of health-care positions. Large companies like Ford and Tyson Foods are working on plans to inoculate their workers when vaccines become available.

Coronavirus Resources

NACS has compiled resources to help the convenience retail community navigate the COVID-19 crisis. For news updates and guidance, visit our coronavirus resources page.

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